For the Week of: 8/10/2008 Eleventh Circuit affirms denial of Florida death row inmate’s habeas petition. Last week, the Eleventh Circuit (Black, Tjoflat and Wilson) affirmed the denial of Richard Shere, Jr.’s habeas petition. Shere v. Secretary, Florida Dept. of Corrections, ___ F.3d ___, 2008 WL 3066738 (11th Cir. Aug. 7, 2008). The sole issue considered on appeal was whether appellate counsel was ineffective in failing to raise on direct appeal a challenge to Biblical references by the prosecutor during cross-examination of defense mitigation witnesses. The questioning at issue came in response to testimony about Shere’s religious beliefs and commitment. The prosecutor, among other things, asked the witnesses about Shere’s knowledge and understanding of the Biblical commandment against killing. In denying relief, the Florida Supreme Court had noted that trial counsel’s failure to object to some of the questions precluded appellate counsel from challenging them on appeal. More importantly, it concluded that the exploration of religion was not reversible error because the defense had interjected religion into the proceedings in the first place. Thus, appellate counsel could not be deemed ineffective for failing to raise an argument that would not have prevailed. In finding that Shere was not entitled to relief on the claim, the panel explained: “Shere has identified no United States Supreme Court case holding appellate counsel rendered constitutionally deficient performance in a situation like that before us, i.e., where appellate counsel failed to challenge a prosecutor’s references to religion during the cross-examination of witnesses who had already testified to religious matters on direct. Moreover, Shere has not identified any basis from which we can conclude the Florida Supreme Court unreasonably applied United States Supreme Court law when it denied his ineffective assistance claim. Thus, Shere is not entitled to habeas relief under AEDPA.” As for Shere’s attempted reliance on Romine v. Head, 253 F.3d 1349 (11th Cir. 2001), the panel responded that circuit precedent could not “form the basis of habeas relief under AEDPA.” Furthermore, even if it were permissible to consider Romine, the case was distinguishable. There, unlike here, the prosecutor unilaterally advanced Biblical arguments in an effort to convince jurors that the Bible required a death sentence. Indeed, the conduct at issue in this case resembled questioning that the court of appeals had actually approved in Romine.

Sixth Circuit denies Warden’s rehearing petition in Ohio death penalty case Last week, the Sixth Circuit denied a rehearing petition filed by the warden seeking en banc review of a panel decision holding that the Double Jeopardy Clause precluded relitigation of the state court’s pre-Atkins finding that Michael Bies is mentally retarded. Bies v. Bagley, ___ F.3d ___, 2008 WL 2965343 (6th Cir. Aug. 5, 2008). Judge Clay authored an opinion concurring in the denial of rehearing en banc, explaining: “On direct appeal of Bies’ sentence, the Ohio Supreme Court found that Bies is mentally retarded, as that term is clinically defined. Because such a finding renders Bies constitutionally ineligible for the death penalty, it amounts to an ‘acquittal’ under Sattazahn, and thus jeopardy attaches to the determination that Bies is mentally retarded.” (Citations omitted.) Judge Clay also approved of the panel’s alternative analysis which relied on collateral estoppel principles. Judge Sutton dissented from the denial of rehearing en banc, arguing, among other things: “Bies was never ‘twice put in jeopardy,’ U.S. Const. amend. V, in the post-conviction claim that he filed in state court. Quite to the contrary: he was taking a second run at vacating his death sentence—which is assuredly his right but just as assuredly does not offend the double-jeopardy bar.”

Sixth Circuit finds Ohio death row inmate entitled to sentencing phase relief. Last week, the Sixth Circuit (Merritt, with Martin and Moore) reversed the district court’s denial of habeas relief to Robert Van Hook on a claim of ineffective assistance of counsel at sentencing. Van Hook v. Anderson, ___ F.3d ___, 2008 WL 2952109 (6th Cir. Aug. 4, 2008). The panel concluded that trial counsel was ineffective during the mitigation phase of the trial for three reasons: “First, [Van Hook’s] counsel was deficient by failing to fully investigate and present as evidence all available mitigating factors; second, by failing to secure or attempt to secure an independent mental health expert to testify that the crime was the product of a mental disease; and third, by mistakenly introducing and also failing to object to proscribed evidence that was clearly damaging to Van Hook’s case.” Regarding the investigative failure, the panel noted that counsel’s last minute investigation “failed to reveal that Van Hook’s parents repeatedly beat him, that he had witnessed his father attempt to kill his mother several times, and that his mother was committed to a psychiatric hospital when he was between four and five years old.” (Citations omitted.) As for the second deficiency, the panel observed: “All three of the experts who testified at trial were appointed by the court, not selected by the defense, and testified in favor of the prosecution’s argument that Van Hook did not suffer from a mental illness. The failure to seek or put on a mental health expert who would give evidence favorable to Van Hook was a serious error.” Notably, the mental health expert retained by habeas counsel opined that a reasonable psychiatrist at the time of trial would have concluded that Van Hook’s severe borderline personality disorder was indeed a mental disease and met the test of “mental disease or defect” established by the relevant Ohio statute. For the final deficiency, the panel noted, among other things, that counsel failed to object to statements by the victim’s mother contained in a presentence report that advocated a sentence of death. The panel concluded that the combined prejudice from the three deficiencies prevented the mitigation hearing from being reliable.

For the Week of: 7/27/2008 Fifth Circuit affirms denial of relief to Texas death row inmate. On July 29, 2008, the Fifth Circuit (Barksdale, with Benavides and Stewart) affirmed the denial of Willie Pondexter, Jr.’s habeas petition. Pondexter v. Quarterman, ___ F.3d ___, 2008 WL 2891061 (5th Cir. July 29, 2008). Regarding Pondexter’s claim that his trial counsel was ineffective for failing to consult with a pathologist, the panel found that Pondexter could not establish prejudice. (In a prior decision, the Fifth Circuit had looked only at whether the state court’s implied finding of no prejudice was unreasonable under § 2254(d). Here, it assumed as urged by Pondexter that the state court did not reach the prejudice prong of the test. It did not decide whether Pondexter was correct in his assertion that Supreme Court case law establishes that de novo review is required in such a situation, ruling instead that even free from the constraints of § 2254(d), Pondexter was not entitled to relief.) At trial, the jury heard testimony that Pondexter fired the second of two shots into the victim’s head. The medical examiner described where the second shot entered and exited and the damage that it did. He then opined that both shots were fired while the victim was alive and either could have caused her death. The panel was not persuaded that there was a reasonable probability of a more favorable result had counsel consulted with or called as a witness a pathologist. (At the state hearing, Pondexter had called a pathologist who testified that the first shot was universally fatal while the second was only potentially fatal. The medical examiner maintained that either shot could have killed the victim and that most likely the death was from a combination of the two. The medical examiner also distinguished between brain death and actual death and explained that the presence of blood in certain areas indicated that the victim’s heart was still beating at the time of the second shot.) Next, the panel addressed Pondexter’s claim that trial counsel was ineffective in failing to interview Pondexter’s cellmate who was called as a witness by the State and who testified that Pondexter had admitted to him that he shot the victim in the jaw. In an affidavit, the cellmate asserted that Pondexter also told him that he knew the victim was already dead when he fired the second shot and that he did it to show off. The panel concluded that the state court finding that Pondexter satisfied neither prong of the Strickland test was not unreasonable. Regarding deficient performance, the panel found extremely significant the failure of Pondexter to allege that he had informed trial counsel of what he had told the cellmate. As for prejudice, the fact that Pondexter had presented an innocence defense at trial was noted, as was the overwhelming evidence of his guilt. The next subclaim involved trial counsel’s failure to object when the prosecutor argued that Pondexter fired the first shot, a position that contradicted the prosecution theory at the earlier trial of a co-defendant and also allegedly was unsupported by the evidence presented at Pondexter’s trial. The panel resolved the claim on the ground that “the overwhelming evidence of Pondexter’s guilt precluded his establishing prejudice in the state-habeas court.” Specifically noted was the medical examiner’s testimony that the victim was alive when the second shot was fired and that both wounds caused her death. Regarding Pondexter’s assertion that ineffective assistance of counsel was established by the combination of the three alleged deficiencies discussed above, the panel expressed agreement with the district court’s finding that claims that are not prejudicial individually cannot be cumulated. Therefore, the state court decision denying relief on this subclaim was not unreasonable. Pondexter’s claim that the State violated Brady by failing to reveal the complete statement made by Pondexter to his cellmate was ruled to be without merit because Pondexter was aware of what he said to the cellmate, precluding a finding of suppression. His claim of a due process violation through the prosecution’s use of inconsistent theories at his trial and the trial of the co-defendant was summarily rejected as the panel found nothing improper about the practice. Finally, Pondexter argued that the prosecutor’s argument that Pondexter fired the first shot was improper because it was not supported by the evidence. The panel found this complained to be outside of the COA. It also noted, “the state-court decision on this point, based on waiver for failing to object contemporaneously, was not unreasonable under AEDPA.”

Eleventh Circuit affirms denial of habeas relief in Florida capital case. On July 31, 2008, the Eleventh Circuit (Black, with Hull and Pryor) affirmed the denial of John Freeman’s habeas petition. Freeman v. Attorney General, State of Florida, ___ F.3d ___, 2008 WL 2919725 (11th Cir. July 31, 2008). Freeman had alleged that his constitutional rights were violated by the prosecution’s impermissible consideration of race in deciding to pursue the death penalty against Freeman, and that defense counsel was ineffective in failing to raise the issue. Freeman, who is white, was charging with killing two black men. At the time of Freeman’s trial, Warren McCleskey’s case was pending in the Supreme Court. McCleskey, a black death row inmate, was challenging the constitutionality of his death sentence on the ground that statistical studies showed that black defendants who killed white victims were more likely to receive a death sentence than white defendants who killed black victims. At a state post-conviction hearing on Freeman’s claim, it was established that the prosecutor referenced the races of the parties when rejecting Freeman’s attempt to negotiate a plea agreement. (Defense counsel recalled that the plea offer was rejected by the prosecutor because, according to the prosecutor, the State needed to “get their numbers up on whites killing blacks.” The prosecutor, in contrast, claimed that after rejecting the offer because of the aggravating circumstances, he threw in that if he accepted it, defense counsel would use it against him in every other death penalty case involving a black defendant and a white victim.) The state post-conviction court denied relief, ruling that even if defense counsel’s version was accurate, the prosecutor’s statement “was nothing more than a somewhat ill-considered retort to then existing allegations of racial discrimination in the application of the death penalty by prosecutors,” and that the State did not pursue the death penalty against Freeman based on his race. This finding proved fatal to Freeman’s claims under § 2254(d)(2) and (e)(1).

Missouri Supreme Court split on claim that trial counsel was ineffective in capital case in failing to raise Batson challenge where juror was excused based on religion. On July 31, 2008, the Missouri Supreme Court affirmed the denial of post-conviction relief to Richard Strong. Strong v. State, ___ S.W.3d ___, 2008 WL 2929675 (Mo. July 31, 2008). The court split 4-3 on Strong’s claim that trial counsel was ineffective in failing to raise a religion-based Batson challenge to the excusal of veniremembers. The majority concluded that the claim foundered on the prejudice prong of Strickland’s test because Strong failed to establish a reasonable probability of a more favorable outcome at either phase of the trial had counsel made the challenge. The majority rejected Strong’s argument that because Batson error is structural, prejudice had to be presumed. The dissent agreed with Strong that the law of structural error should be applied here to remedy the underlying constitutional violation.

Eighth Circuit en banc affirms denial of relief to Missouri death row inmate. On July 29, 2008, the Eighth Circuit sitting en banc issued a decision authored by Judge Hansen affirming the denial of Herbert Smulls’s habeas petition. Smulls v. Roper, ___ F.3d ___, 2008 WL 2889622 (8th Cir. July 29, 2008). At issue was Smulls’s claim that the State violated Batson by striking the only remaining black veniremember. Smulls first argued that the trial court’s denial of the Batson challenge involved an unreasonable application of federal law because the trial court failed to make findings concerning the prosecutor’s claimed race-neutral reasons for the strike. The appeals court responded: “Smulls fails to direct us to any Supreme Court case holding that the Constitution requires a trial court to make specific fact-findings in reviewing a Batson challenge.” Nor did the court believe that the Supreme Court’s recent decision in Snyder v. Louisiana, established such a requirement. There, the Supreme Court declined to assume the trial court credited one reason given by the prosecutor for striking a venireperson rather than having relied on the second explanation that the Supreme Court concluded was pretextual. Notably to the appeals court, the Supreme Court did apply a deferential standard to the second reason even though the state trial court had not expressly indicated it was accepting that explanation. After distinguishing Snyder further, the appeals court observed that the decision could not provide a basis for habeas relief under § 2254(d)(1) because it was not “clearly established” law at the time of the state court’s ruling. The appeals court next found that the absence of express findings did not relieve the federal court of its obligation to presume correct the trial court’s implicit finding that the prosecutor’s proffered race-neutral explanations were credible. Nor was the appeals court empowered to order the district court to reconstruct the record. The burden was on Smulls to overcome the trial court’s factual findings by clear and convincing evidence. Also rejected was Smulls’s argument that the trial court’s decision was contrary to Supreme Court precedent because it conflated the second and third steps of the Batson test. The appeals court relied on what it found was a correct application of Batson by the Missouri Supreme Court. It explained, “By finding that the trial court did not clearly err in accepting the prosecutor’s reasons, the Supreme Court of Missouri properly applied the third step of the Batson analysis.” (According to the appeals court, a denial of a Batson challenge is itself a finding at the third step that the defendant failed to carry his burden of establishing purposeful discrimination.) The court reinstated the three-judge panel´s decision insofar as it found Smulls´ Batson-related ineffective assistance of counsel claims to be without merit. Judge Bye, joined by Judge Smith, dissented from the majority´s ruling on the Batson claim, arguing: "Because the trial court refused to consider all relevant circumstances as required by clearly established federal law, its unreasoned and unexplained decision cannot be accorded the normal presumption of correctness. Moreover, the Missouri Supreme Court´s conclusion the trial court acted properly was an unreasonable application of clearly established federal precedent. To hold otherwise renders our role a sham and I refuse to accept an interpretation of appellate review which relegates us to the role of a legal rubber stamp."

For the Week of: 7/20/2008 Fifth Circuit affirms grant of habeas relief to Texas death row inmate. On July 22, 2008, the Fifth Circuit (King, with Davis and Clement) affirmed the grant of habeas relief to Robert Fratta based on a Confrontation Clause violation. Fratta v. Quarterman, ___ F.3d ___, 2008 WL 2802051 (5th Cir. July 22, 2008). Fratta was charged with hiring two men, Guidry and Prystash, to murder his wife. The trial court admitted into evidence custodial statements made by Guidry and Prystash even though the men were tried separately and did not appear at Fratta’s trial. Also admitted into evidence was testimony from Prystash’s girlfriend about statements Prystash had allegedly made to her. Although the State appealed the grant of relief, it did not challenge the district court’s finding that admission of the custodial confessions violated the Confrontation Clause even under pre-Crawford law. Instead, the State contested only the district court’s conclusion that admission of statements made to the girlfriend violated Fratta’s constitutional rights. The State did not defend the state court’s rationale for finding that the statements were properly admitted, which relied in part on the inapplicable Bruton line of cases and the co-conspirator exception to the hearsay rule, but argued instead that the statements were nevertheless admissible in accordance with then-existing Supreme Court precedent because they possessed sufficient indicia of reliability. The State contended that the district court misapplied § 2254(d) by improperly reviewing the state appellate court’s reasoning instead of looking to its ultimate decision. The panel responded: “[I]n assigning meaning to the ‘contrary to’ clause, the [Supreme] Court clearly has contemplated that a federal court will sometimes look beyond the state court’s ultimate decision—for example, to determine if the state court applied a rule that contradicts governing law. Additionally, while it is certainly true that when the state court has identified the correct governing legal principle, the federal court’s ‘unreasonable application’ determination is limited to examining the state court’s ultimate legal conclusion (and not the ‘method by which the state court arrives at its conclusion’), in other situations the ‘unreasonable application’ determination may permissibly take a different form—for example, the question whether the state court has ‘unreasonably extend[ed] a legal principle . . . to a new context where it should not apply (or unreasonably refuse[d] to extend a legal principle to a new context where it should apply),’ will certainly require consideration of more than the state court’s ultimate decision. The bottom line is that satisfaction of either the ‘contrary to’ or the ‘unreasonable application’ test—under any of the multiple scenarios described by the Court—will free the federal court from the constraints of Section 2254(d)(1).” (Citations omitted.) The panel then expressed agreement with the district court’s finding that § 2254(d) did not preclude the federal courts from granting relief to Fratta in light of the state appellate court’s flawed analysis. Turning to the merits, the panel was not persuaded that the statements at issue were sufficiently trustworthy to be admissible under the Confrontation Clause. The panel pointed out that the statements minimized Prystash’s role in the killing and assigned the role of triggerman to Guidry. In addition, the statements were made following the girlfriend’s repeated questioning and thus were not completely spontaneous. Also, while portions of the statements were self-incriminating, the girlfriend had known about a plan to kill the victim so a complete denial of involvement was not likely to have been plausible. Further, because the girlfriend had been angry about the idea of the victim being killed, and because Prystash depended upon her for support, Prystash had an incentive to minimize or distort his level of involvement. Finally, the panel noted that it had previously found that admission of the same statements violated the Confrontation Clause when presented at Guidry’s the trial. In a footnote, the panel observed: “We note that should the State seek to re-try Fratta, the question of the admissibility of the custodial confessions and Prystash’s statements to [his girlfriend] will not be governed by the reliability framework established in Roberts. Instead, the Confrontation Clause analysis will focus on whether these statements are ‘testimonial.’ Since neither party has argued that the statements should or should not be considered ‘testimonial,’ or even argued that this question has any relevance to Fratta’s habeas petition, we of course offer no opinion on this issue.” (Citations omitted.) The panel concluded by agreeing with the district court’s finding that admission of the custodial confessions and the girlfriend’s testimony was prejudicial under Brecht, a finding that the State did not contest.

Oklahoma Governor approves parole board´s clemency recommendation in capital case According to the Governor´s press release: Governor Brad Henry today approved clemency for death row inmate Kevin Young, commuting his sentence to life without the possibility of parole as recommended by the State Pardon and Parole Board. “This was a very difficult decision and one that I did not take lightly,” said Gov. Henry. “I am always reluctant to intervene in a capital case, and I am very respectful of a jury’s verdict, the prosecutors who tried the case and the victim’s family who suffered because of the crime. “However, after reviewing all of the evidence and hearing from both prosecutors and defense attorneys, I decided the Pardon and Parole Board made a proper recommendation to provide clemency and commute the death sentence. “As a result, Kevin Young will be punished by serving the rest of his life behind bars without the possibility of parole.” Young was sentenced to death in 1996 after exchanging gunfire and killing a man during a botched robbery attempt of an illegal gambling operation. Earlier this month, the Pardon and Parole Board asked Gov. Henry to grant Young clemency and commute his death sentence. In testimony presented at the board’s clemency hearing, Young’s attorneys argued the shooting was not premeditated and did not merit a capital sentence. They noted their client turned down a plea agreement in his original trial that would have given him a life sentence. Before making his decision, the governor reviewed Young’s case file and personally interviewed both prosecutors and defense attorneys. This is only the second time during his tenure in office that Gov. Henry has granted a clemency recommendation in a death penalty case.

Federal district court enters judgment against California death row inmate. On July 22, 2008, United States District Judge Charles Breyer of the Northern District of California issued an order granting the warden’s motion for summary judgment on all claims raised by Robert Fairbank, although summary judgment was granted without prejudice on two claims. Fairbank v. Ayers, C 98-1027-CRB (N.D. Cal.). A claim on incompetency to be executed was premature. A challenge to California’s lethal injection protocol was moot because the protocol has been changed. Breyer ruled that Fairbank could bring a challenge to the present protocol in a separate § 1983 action. The claims and subclaims denied with prejudice were: (1) ineffective assistance by original trial counsel for obtaining inculpatory evidence that was later ordered revealed to the prosecution; (2) ineffective assistance by trial counsel in pretrial proceeding for: (a) failing to use statements by the victim’s family opposing the death penalty to persuade the district attorney not to charge Fairbank with first degree murder or seek the death penalty, (b) conceding Fairbank’s guilt during voir dire and informing prospective jurors that they would only decide degree of murder and whether the alleged special circumstances were true, and (c) failing to ask all prospective jurors about drug use; (3) ineffective assistance by trial counsel in the guilt phase for: (a) failing to make an opening statement and only briefly cross-examining certain prosecution witnesses prior to Fairbank’s entry of a guilty plea, (b) failing to present mental state defenses and instead advising Fairbank to plead guilty without any reciprocal benefits, and (c) advising Fairbank to admit the truth of the torture and attempted oral copulation special circumstances; (4) ineffective assistance of counsel at the penalty phase for: (a) assisting the prosecution by presenting evidence that Fairbank is a sociopath who does not suffer from mental illness, (b) failing to conduct an adequate mitigation investigation and failing to adequately guide and provide information to the defense expert, (c) failing to adequately cross-examine witnesses about the circumstances of the homicide and possible impairment of Fairbank’s mental state, and failing to provide evidence about his mental state at the time of the capital offense, (d) having an expert testify generally about the effects of cocaine instead of recounting Fairbank’s history of substance abuse, (e) referring to Fairbank in negative terms during argument, and (f) failing to object to the introduction of inflammatory photographs of the victim and failing to object to their placement close to the jury; (4) ineffective assistance of counsel for failing to litigate a motion for new trial; (5) cumulative effect of deficient performance during pre-trial and guilt proceedings prejudiced Fairbank; (6) trial counsel’s deficient performance amounted to a breakdown in the adversarial process requiring a presumption of prejudice; (7) ineffective assistance by appellate and state habeas counsel for failing to preserve evidence, investigate relevant issues, adequately consult with Fairbank, adequately research issues, and present all known issues to the state supreme court; (8) trial court erroneously denied post-trial motion to withdraw guilty plea which was based on Fairbank’s assertion that he had been intoxicated from medications and jail wine at the relevant time; (9) trial court erred by accepting only a stipulated factual basis for Fairbank’s guilty plea; (10) trial court erred by accepting Fairbank’s admission that the special circumstance allegations were true; (11) trial court erred at time it accepted admission of the torture special circumstance because it failed to advise Fairbank of the intent element; (12) jailhouse informant acted as prosecution agent; (13) prosecutorial misconduct by: (a) making incorrect, inflammatory and prejudicial statements during penalty phase closing argument, and (b) eliciting testimony about a racial slur made by Fairbank after a defense objection had been sustained; (14) trial court erred by admitting a barbeque fork as a possible murder weapon; (15) trial court committed prejudicial error by admitting evidence of a prior offense to show motive and intent; (16) trial court erred by failing to instruct jury to consider with caution jailhouse informant’s testimony about Fairbank’s attempt to prevent witnesses from testifying; (17) trial court erred in failing to grant cause challenge to biased juror and defense counsel was ineffective in failing to utilize a peremptory challenge to remove the juror; (18) trial court erred at guilt and penalty phase by admitting gruesome photographs of the victim’s body as it appeared when found and at the autopsy; (19) Fairbank was incapable of forming the requisite intent to commit first degree murder because he suffered from organic brain damage, depression, attention deficit disorder, PTSD, alcoholism, drug addiction and substance abuse; (20) denial of fair consideration of the automatic appeal; (21) the death penalty is inherently cruel and unusual and not fairly imposed; (22) California’s statutory scheme fails to adequately narrow the class of death-eligible murderers; (23) California’s definition of first degree murder is unconstitutionally vague and overbroad; (24) execution by lethal gas is cruel and unusual; (25) California’s death penalty statute is unconstitutional because it fails to designate which statutory sentencing factors are aggravating and which are mitigating, it fails to require a unanimous finding that death is the appropriate sentence beyond a reasonable doubt, and it fails to require written findings regarding the sentencing factors; (25) death sentence was disproportionate to the crime; and (26) cumulative error.

Eleventh Circuit affirms denial of habeas relief in Florida capital case. On July 23, 2008, the Eleventh Circuit (Pryor with Birch and Black) affirmed the denial of Melvin Trotter’s habeas petition. Trotter v. Secretary, Dept. of Corrections, ___ F.3d ___, 2008 WL 2813862 (11th Cir. July 23, 2008).

Claim of ineffective assistance of counsel regarding performance at competency proceedings fails in non-capital habeas case. Non-capital federal habeas petitioner cannot succeed on claim of ineffective assistance of counsel based on his trial counsel’s performance at a competency hearing because of the absence of clearly established Supreme Court precedent supporting the claim. Crawley v. Dinwiddle, ___ F.3d ___, 2008 WL 2805410 (10th Cir. July 22, 2008). Trial counsel had requested that Crawley undergo a competency determination. The request was premised on counsel’s concern that Crawley’s obsession with matters irrelevant to his defense was interfering with his ability to communicate with counsel. The mental health expert appointed by the court to evaluate Crawley concluded that Crawley was unable to consult with his attorney and rationally assist in the preparation of his defense. Crawley disagreed with the assessment, believing himself to be competent and wanting to stand trial. At the competency hearing, the government called the expert and argued that Crawley was not competent. Suppressing his misgivings and acquiescing to his client’s wishes, defense counsel successfully argued to the jury that the evidence supported a finding of competence despite the expert’s contrary. Following his conviction, Crawley alleged, among other things, that his trial attorney had rendered deficient performance by adhering to Crawley’s preference to be found competent despite counsel’s personal opinion on the matter and the opinions of the expert and prosecutor. In affirming the denial of relief, the Tenth Circuit found, among other things: “The Supreme Court has yet to consider a factual scenario analogous or similar to that presented here. It has concluded ‘[t]he Constitution does not permit trial of an individual who lacks ‘mental competency.’” Indiana v. Edwards, 554 U.S. -- , 128 S. Ct. 2379, 2383 (2008). On the other hand, it has approved of procedures similar to those employed here. See Drope v. Missouri, 420 U.S. 162, 172-73 (1975). The broad principle proscribing the trial of mentally incompetent individuals does not sufficiently inform the debate here. A much more specific rule would be necessary to upset the [Oklahoma Court of Criminal Appeals’] decision.”

Eighth Circuit refuses to expand COA to include argument that federal death row inmate had a statutory right to have § 2255 proceedings stayed because of inmate’s present incompetence. In affirming the denial of Jeffrey Paul’s § 2255 petition, the Eighth Circuit (Colloton with Beam and Benton), refused to expand the COA to include Paul’s argument that he has a statutory right to be competent during habeas proceedings. Paul v. United States, ___ F.3d ___, 2008 WL 2796725 (8th Cir. July 22, 2008). (A COA had only been granted on the issue of whether there is a constitutional right to competence during federal habeas proceedings, an issue Paul did not argue directly in his briefing, focusing instead on whether a right to competence is grounded in federal law.) In finding expansion of the COA inappropriate here, the panel looked to the specific facts of the case. It noted that the alleged incompetence did not arise until November 2003, following a suicide attempt. As of that date, however, Paul’s 344-page habeas petition had already been filed, the government had responded, and the district court had issued its ruling. Thus, “[t]o the extent counsel needed assistance from Paul in developing facts outside the record, that work was completed before November 2003. . . . Once a habeas corpus motion is submitted to the court, and the parties are merely awaiting a decision, there is no need for rational communication between counsel and client in furtherance of the motion.” And assuming there is a right to competence during the § 2255 appeal process, the panel saw “no reason to conclude that Paul’s 191-page application for a certificate of appealability winnowed the issues on appeal in a way that may have prejudiced a petitioner who could not communicate rationally with counsel.” The panel also expressed skepticism about the merits of Paul’s claimed statutory right to competence but declined to create a circuit split on the issue given that the district court had made a finding during the course of the habeas proceedings that Paul was competent to proceed. (The competency finding was made based on the district court’s communication with Paul when he was affirmatively seeking to be executed, a position he later withdrew. The district court rejected habeas counsel’s request for a mental health evaluation, despite a psychiatrist’s declaration opining that recent phone conversations with Paul had led the expert to believe that Paul was suffering from a serious psychotic illness. This expert did examine Paul while the appeal was pending and opined Paul was not competent to assist counsel in the appeal. A motion to remand the case to the district court in light of this finding was denied.) In the panel’s view, the district court’s competency finding was adequately supported by the record, which included findings of competence at the time of the federal capital trial. Further, the panel could see no potential prejudice to Paul from the alleged incompetence given when it arose in the course of the proceedings.

Pennsylvania Supreme Court issues two decisions addressing the question of whether a death row inmate can be forced to take medication in order to render him competent for purposes of participating in post-conviction proceedings. Incompetent death row inmate may be compelled to take psychiatric medication in order to render him competent to determine whether he wants to pursue relief in state post-conviction proceedings. Commonwealth v. Watson, ___ A.2d ___, 2008 WL 2806576 (Pa. July 22, 2008). If the inmate cannot be rendered competent with medication, and a suitable next friend cannot be identified, the proper result is the dismissal of any pending petition rather than a stay of post-conviction proceedings. Commonwealth v. Sam, ___ A.2d ___, 2008 WL 2853095 (Pa. July 22, 2008). (In Watson, the incompetent death row inmate sought to dismiss the post-conviction proceedings. In Sam, an unauthorized post-conviction relief petition had been filed on behalf of the incompetent inmate.)

Pennsylvania Supreme Court affirms finding that death row inmate is mentally retarded and exempt from execution. On July 23, 2008, the Pennsylvania Supreme Court affirmed the post-conviction court’s order vacating Joseph Miller’s death sentence after holding an Atkins hearing and finding that Miller is mentally retarded. Commonwealth v. Miller, ___ A.2d ___, 2008 WL 2814668 (Pa. July 23, 2008). (The Commonwealth had conceded that Miller met the limited intellectual functioning and age of onset criteria for a diagnosis of mental retardation. The dispute was on the adaptive functioning prong of the test. The Commonwealth presented one expert who expressed the opinion that Miller had been mentally retarded at the time he arrived at death row but was no longer mentally retarded because he was able to adapt there. Another expert called by the Commonwealth opined that Miller’s adaptive improvements began to manifest in adulthood and that they would translate to the community should Miller be released from prison. The Commonwealth also urged that Miller’s criminal sophistication undermined his claim of adaptive deficits.) On appeal, the sole argument raised by the Commonwealth was that the post-conviction judge, who had also been the trial judge, should have recused herself. The recusal motion had been premised on statements made prior to Miller’s capital trial when the judge rejected a waiver of a jury. Because the judge had presided over pretrial motions, she had been privy to prejudicial evidence that would be inadmissible at the actual trial and therefore found herself to be “less than an impartial fact-finder.” The Commonwealth contended that those remarks created an appearance of impropriety and/or tended to undermine public confidence in the judiciary. In rejecting the recusal motion, the judge explained that the prior remarks were limited to a specific issue – Miller’s guilt or innocence – that was not relevant to the Atkins determination. The Pennsylvania Supreme Court held that the judge did not abuse her discretion in denying the recusal motion.

Pennsylvania Supreme Court affirms finding that death row inmate received ineffective assistance from his trial counsel at resentencing proceedings. On July 24, 2008, the Pennsylvania Supreme Court affirmed the post-conviction court’s grant of penalty phase relief to David Sattazahn. Commonwealth v. Sattazahn, ___ A.2d ___, 2008 WL 2873554 (Pa. July 24, 2008). In finding support for the post-conviction court’s ruling that trial counsel’s mitigation investigation was deficient, the court noted that trial counsel should have reviewed the court file related to a crime that was used by the prosecutor as aggravation. Had counsel done so, he would have discovered a department of corrections report that contained red flags concerning potential mental health and/or cognitive impairment. The evidence also “support[ed] the conclusion that the failure to pass several grades during early childhood development, and the subsequent placement in a special class, strongly suggests potential mental, cognitive, emotional, and/or social difficulties which would bear investigation in defending against the imposition of the death penalty.” The lower court’s conclusion that the truncated investigation was not the result of reasonable strategy was supported by the record. Notably, the investigation “touched upon only a limited set of sources and yielded a highly truncated mitigation presentation,” i.e., two witnesses. (The court summarized the testimony of the mitigation witnesses as follows: “[Sattazahn’s] former employer merely testified to his recollection that [Sattazahn] was faithful to his job during the two years of the employment. On direct examination, [Sattazahn’s] mother testified that [Sattazahn] was her only child and was a good child who did not get into a lot of trouble, advanced to the ninth grade, worked at several jobs, and treated her and her husband well. She also related that her husband traveled during [Sattazahn’s] upbringing and had had a heart attack. Finally, at trial counsel’s instance, she asked the jury to spare [Sattazahn’s] life.”) In discussing prejudice, the court acknowledged that there was substantial aggravation in this case. In addition to the capital offense, a murder in the course of a robbery, Sattazahn has a history of violent offenses, including two murders. Nevertheless, prejudice was found. The mitigating evidence presented in the post-conviction proceedings included extensive medical and scientific evidence and testimony regarding “neglectful parenting, social isolation and impaired social development, significant educational impairments and learning disabilities, odd risk-taking behaviors, organic brain damage, mental illness and other potential statutory mitigators.” Sattazahn’s challenges to his conviction were rejected. Also rejected was Sattazahn’s claim that his original trial attorney was ineffective in advising him that if he successfully appealed his conviction after receiving a life sentence as a result of a hung sentencing jury, that a death sentence could not be sought at a subsequent retrial. The primary weakness in the claim, according to the court, was Sattazahn’s failure to establish by credible evidence that he would have forgone the appeal had he known that the State could seek death a second time, as it in fact it did. The court did not accept the assumption that a defendant would not risk a possible death sentence in order to gain a chance at freedom.

For the Week of: 7/13/2008 Habeas relief denied to three Arizona death row inmates. On July 14, 2008, United States District Judge Roslyn Silver of the District of Arizona denied the habeas petition of Pete Rogovich and also denied a COA. Rogovich v. Schriro, 2008 WL 2757362 (D.Az. July 14, 2008). The claims addressed and rejected were: (1) Confrontation Clause violation where medical examiner’s testimony regarding cause of death was premised on the autopsy reports prepared by another pathologist; (2) due process violation where trial court permitted insanity defense without first determining whether waiver of fundamental rights inherent in the defense was knowing, intelligent and voluntary; (3) Fourteenth Amendment violation occurred by the State’s failure to collect breath, blood or urine samples from Rogovich despite knowledge that he may have been intoxicated at the time of the crimes and his arrest; (4) Confrontation Clause violation and insufficient evidence to support aggravated assault convictions; and (5) ineffective assistance by appellate counsel for (a) failing to challenge the applicability of two aggravators, (b) failing to raise the right to an instruction on a lesser-included offense of aggravated assault, (c) failing to challenge victim impact evidence admitted during guilt phase, and (d) failing to raise prosecutor’s improper argument that implied that a finding of insanity would result in Rogovich’s immediate release. Judge Silver further found that Rogovich was not entitled to factual development through discovery, expansion of the record or an evidentiary hearing for his claim that he was not competent to elect an insanity defense. The incompetence allegation was procedurally defaulted because it had not been raised in state court. In addition, the record established that the claim was meritless. Nor was Rogovich entitled to factual development of his ineffective assistance of appellate counsel claims in part because he was not diligent in presenting the claims in state court. (He failed, e.g., to request a hearing on the claims or provide supporting affidavits.) On July 15, 2008, United States District Judge Neil Wake of the District of Arizona denied the habeas petition of Gregory Dickens. Judge Wake granted a COA on: (1) Whether the Court erred in finding that new factual allegations concerning fetal alcohol syndrome and brain deficits related to a claim of ineffective assistance of counsel were procedurally defaulted; and (2) Whether the Court erred in finding that the claim of ineffective assistance of counsel at sentencing based on counsel’s handling of mitigation expert Dr. Roy lacked merit. Also on July 15, 2008, United States District Judge Robert McNamee denied Samuel Lopez’s habeas petition. Judge McNamee granted a COA on: Whether Claim 1C of the Amended Petition – alleging ineffective assistance of counsel for failure to investigate and prepare the case for sentencing including failure to prepare the expert – is, in part, procedurally barred. When Claim 1C was presented in state court, the allegation was that counsel failed to provide the expert with four documents concerning two percipient witnesses. According to Lopez, had the documents been provided to the expert, the expert’s tentative diagnosis of pathological intoxication at the time of the offense would have been significantly bolstered. In the federal habeas proceedings, however, Lopez alleged more broadly that counsel should have provided the expert with extensive social history information so that the expert could provide a complete and thorough assessment of Lopez’s cognitive functioning, as well as any psychological conditions, addictive diseases, or neurological deficits, and any other possible influences on Lopez’s behavior and thought process at the time of the crime. Judge McNamee concluded that Lopez had failed to fairly present the claim as alleged in federal court to the state court. The new allegations were nevertheless technically exhausted because they would be deemed procedurally barred if Lopez attempted to raise them now in state court. Because no cause and prejudice or fundamental miscarriage of justice was shown, McNamee dismissed the new allegations as procedurally defaulted.

Tenth Circuit affirms denial of habeas relief to Oklahoma death row inmate. On July 18, 2008, the Tenth Circuit (Hartz with Lucero and Murphy) affirmed the denial of Michael DeLozier’s habeas petition. DeLozier v. Sirmons, ___ F.3d ___, 2008 WL 2780595 (10th Cir. July 18, 2008). The issues raised in the appeal were: (1) ineffective assistance by trial counsel for (a) not properly challenging four jurors who were biased in favor of the death penalty, (b) not moving before trial to exclude evidence of DeLozier’s prior convictions, (c) not calling as witnesses DeLozier’s sister and a friend who were with him shortly after the murders but who did not participate in the murders, (d) not effectively impeaching a co-defendant’s testimony, (e) not objecting to the State’s improper comment on pretrial silence, (f) not objecting to the State’s improper questions when DeLozier was cross-examined and to its improper arguments to the jury, and (g) not conducting a proper investigation to obtain mitigating evidence for the penalty phase of trial and not presenting available mitigating evidence; (2) ineffective assistance of appellate counsel for not raising a claim of ineffective trial counsel; and (3) the cumulative effect of trial counsel’s deficient acts rendered counsel’s assistance ineffective. In affirming the district court’s denial of an evidentiary hearing on a claim DeLozier had already received a hearing on in state court, the panel acknowledged that a federal hearing would be required if the state hearing had not been full and fair. It found, however, that DeLozier had not established that the hearing he received in state court was flawed. The claim of ineffective assistance by trial counsel for failing to adequately develop and present mitigating evidence was found to be procedurally defaulted because it had not been raised on direct appeal. Although the claim could not have been resolved based on the trial record alone, Oklahoma had a procedure available at the time of the appeal for supplementing the record. Indeed, appellate counsel had invoked the procedure for raising a separate ineffective assistance allegation. The panel was not persuaded by DeLozier’s contention that ineffective assistance by appellate counsel provided cause to overcome the procedural default. Notably, appellate counsel had retained an expert to perform a “comprehensive forensic neuropsychological assessment.” Although some of the expert’s findings might have been helpful, the expert also opined that DeLozier presented a higher risk for future violence should he be released than the average inmate. In the panel’s view, it could have been devastating to DeLozier’s mitigation case had the jury been informed of that opinion. The panel rejected DeLozier’s argument that recent Supreme Court precedent concerning Texas’s former sentencing scheme and instructions stand for the proposition that trial counsel must present evidence that may be “a two-edged sword.” That appellate counsel did not discover the more helpful opinions of the expert retained in post-conviction proceedings did not render her performance deficient. The panel was not persuaded that the inadequacy of appellate counsel’s investigation was established by her disclaimer to the state appellate court that she had not conducted a full investigation into DeLozier’s case because of inadequate resources. Notable to the panel was appellate counsel’s failure to identify the issues she was unable pursue, specifically the absence of any mention of mitigation. In the panel’s view, appellate counsel’s “conclusory, bald assertion proves nothing” given that she did retain a mental health expert and her investigation into another claim was sufficient to convince the state appellate court to remand for an evidentiary hearing.

Fourth Circuit affirms denial of habeas relief to North Carolina death row inmate. On July 15, 2008, the Fourth Circuit (per curiam – Niemeyer and King; dissent by Gregory) issued an unpublished opinion affirming the denial of Danny Frogge’s habeas petition. Frogge v. Branker, 2008 WL 2744344 (4th Cir. July 15, 2008). The sole issue was whether trial counsel were ineffective in failing to develop and present evidence of Frogge’s organic brain damage. The court hearing Frogge’s motion for appropriate relief (MAR) concluded that they were. The state supreme court, however, found otherwise. In the state supreme court’s view, counsel reasonably relied on the mental health experts they retained, neither of which suggested that neurological or neuropsychological testing should be conducted to determine whether a head injury suffered by Frogge caused permanent damage to his brain. (One expert had opined without such testing that Frogge suffered from delirium at the time of the capital offense “due to multiple etiologies, substance intoxication delirium, alcohol [sic] and mood disorder due to postconcussive disorder.” The prosecution’s expert opined that the head injury was unrelated to the capital offense and noted that tests could have been conducted to determine whether there was a connection but none had been done. At the time of Frogge’s retrial, defense counsel retained a new expert, a clinical psychologist, who did not see any significance to the head injury.) The panel majority, acknowledging that it might be inclined to rule in Frogge’s favor if the claim were considered “under a less deferential standard of review,” found that relief was barred by §2254(d) because it could not say that the state court’s decision involved an unreasonable application of Strickland. More specifically, “it was not objectively unreasonable for the state supreme court to determine, in reliance on Strickland and Wiggins, that Frogge’s trial counsel made a valid strategic choice not to further pursue evidence of permanent organic brain damage once they informed [the second retained expert] about the 1990 head injury and he declined to recommend additional testing or experts.” This was true “despite the known lack of qualifications on the part of [the second expert] to perform neurological or neuropsychological tests; that is, it was not objectively unreasonable for the state supreme court to accept counsel’s MAR hearing testimony that they believed [the expert] at least possessed the ability to determine whether such testing was necessary and justifiably relied on his view in this regard.” Nor could the state court decision be found to be unreasonable in light of the timing of the second expert’s evaluations and alleged deficiencies in the materials provided to him by counsel given Frogge’s failure to sufficiently show that these factors influenced the expert’s opinions and advice. The panel majority also rejected Frogge’s contention that the state supreme court’s decision was based in part on an inaccurate view of the record as to what materials the expert actually was provided. The panel majority’s closer reading of the decision led it to conclude it was not based on an unreasonable determination of the facts. Finally, Frogge took issue with the state court’s finding that trial counsel’s decision to forego testing for organic brain damage before the retrial was informed in part by the failure of the head injury “defense” in the initial trial. The panel majority agreed that the record did not support this proposition but the error changed nothing since it was not necessary to the state court’s bottom-line conclusion that counsel reasonably relief on their expert. Judge Gregory dissented, finding: “Defense counsel’s actions in light of the circumstances were ‘rudimentary’ and certainly illogical and unreasonable. While I do not suggest that defense counsel must scour the earth ‘shopping’ for the most preeminent experts, I do believe that justice requires, at a minimum, for counsel to secure an expert in the relevant field. This is particularly so, for a counsel who knows, as here, the specific testing required to support its mental health defense.”

For the Week of: 7/6/2008 Habeas relief denied to Arizona death row inmate. On July 8, 2008, United States District Judge Roslyn Silver of the District of Arizona denied Robert Moorman’s habeas petition. Moorman v. Schriro, 2008 WL 2705146 (D. Az. July 8, 2008). Moorman’s case had been remanded by the Ninth Circuit for a determination of whether Moorman was prejudiced by appellate counsel’s failure to raise certain claims on direct appeal, some challenging trial counsel’s performance. Judge Silver concluded that there was no reasonable probability the Arizona Supreme Court would have granted relief had the claims been raised on appeal. Judge Silver did grant a COA on the following: (1) whether appellate counsel rendered constitutionally ineffective representation by failing to raise on direct appeal a claim alleging ineffective assistance based on trial counsel’s failure to pursue alternative defenses; (2) whether appellate counsel rendered constitutionally ineffective representation by failing to raise on direct appeal a claim alleging ineffective assistance based on trial counsel’s waiver of lesser-included-offense instructions; and (3) whether appellate counsel rendered constitutionally ineffective representation by failing to raise on direct appeal a claim alleging ineffective assistance based on sentencing counsel’s failure to present lay witnesses concerning Moorman’s background.